On May 8, 2009, Susan G. Schulte (Schulte) filed a complaint with the
Wisconsin
Employment Relations Commission (Commission) asserting that Waukesha County
Technical College (College) had committed prohibited practices within the meaning of the
Municipal Employment Relations Act by not proceeding to contractual grievance arbitration
over her termination.(2) On August 7, 2009,
the College filed a motion to dismiss the
complaint. On September 15, 2009, Commission Examiner Daniel Nielsen granted the
motion to dismiss, finding that the allegations raised in the complaint failed to state a claim
upon which relief could be granted because although the contractual language was
ambiguous, evidence submitted by the College established

Page 2

Dec. No. 32785-D

that the parties to the collective bargaining agreement ­ i.e., the College and the
collective
bargaining representative - did not intend for the arbitration step of the grievance procedure
to be available to individual bargaining unit members absent Union approval not present in
this case. Therefore, Examiner Nielsen concluded that Schulte did not have a right to pursue
arbitration with the College independent of the Union.

On September 29, 2009, Schulte filed a petition for review of Examiner
Nielsen's
decision with the Commission. On December 17, 2009, the Commission agreed with
Examiner Nielsen that the contractual language was ambiguous on the question of whether
individual bargaining unit members have the right to pursue arbitration with the College
absent the participation or acquiescence of the Union. However, the Commission found that
the evidence relied upon to dismiss the complaint consisted of self-serving hearsay. As such,
the Commission concluded the evidence was not sufficient to definitively resolve the
ambiguity against Schulte and that Schulte should have the opportunity to test the hearsay
evidence at hearing. The Commission set aside the Examiner's Order and assigned the
matter to Examiner Matthew Greer for further proceedings.

An evidentiary hearing was held on April 26, 2010 in Waukesha, Wisconsin
before
Examiner Greer. Schulte appeared at the hearing room with a representative,(3)
but left the
hearing before the hearing could begin. The reasons she gave for leaving(4)
included 1) her
concern about the number of people in the hearing room that she perceived would be
witnesses and the nature of the testimony that those witnesses would deliver, 2) her concern
that the hearing would delve into issues related to the underlying grievance that Schulte
desired to arbitrate, 3) her belief that the documents already presented were sufficient for her
to argue her case, and 4) her desire to preserve her arguments for when she went to
arbitration on the grievance.

The Examiner attempted to answer Schulte's concerns by assuring her that the
hearing was limited to the issue identified in the Commission's December 2009 decision,(5)
and that she could make a motion to sequester witnesses in order to limit the number of
witnesses in the hearing room. The Examiner further warned Schulte that

Page 3

Dec. No. 32785-D

the hearing would proceed despite her absence and that her ability to argue her case
could
be prejudiced if she did not participate. Despite these assurances and warnings, Schulte left
the hearing before it could begin. The hearing proceeded and the College and WEAC
presented evidence in support of their positions. Because she decided not to participate in
the hearing, Schulte neither presented any evidence in support of her complaint, nor did she
rebut the evidence put forth by the College and WEAC.

Following Schulte's departure, the College moved to dismiss the complaint for
failure
to prosecute and WEAC joined the motion. It was argued that Schulte was the party with the
burden of going forward and her deliberate absence indicated that she was not willing to
pursue her complaint.

The Examiner established a briefing schedule limited to the motion to dismiss
for
lack of prosecution.(6) The parties were
provided an opportunity to submit written arguments
in support of their positions, the last of which was received June 4, 2010.

DISCUSSION

The Commission rarely upholds the dismissal of a complaint for lack of
prosecution,
particularly where the complainant is unrepresented. When it does, it is commonly premised
on a history of repeated delays that cause prejudice to the other parties. See,
e.g.,
Blackhawk Technical College, Dec. No. 30023-D (WERC, 10/03).

The College and WEAC have not demonstrated that they have suffered
prejudice as
a result of Schulte's decision not to participate in the hearing. In Blackhawk Technical
College, supra, the Commission ordered dismissal in a case where the
respondent suffered
prejudice when a pro se complainant repeatedly ignored deadlines and
scheduling requests
from the examiner. These delays resulted in a decision issued nearly four years after the
facts
in the complaint had occurred. Under those circumstances, "forbearance toward a
pro se
party clashes with a respondent's legitimate interest in clarity, preservation of evidence, and
closure." Id. at 20. In this case, the College and WEAC did not provide any evidence or
argument that Schulte's decision to leave the hearing prejudiced their ability to respond to
the issue at hearing. The hearing proceeded as scheduled following Schulte's departure and
the College and WEAC were afforded a full opportunity to present evidence.

Page 4

Dec. No. 32785-D

In contrast, the Commission has overturned an examiner's decision granting a motion
to dismiss for failure to prosecute after a complainant ostensibly abandoned a hearing. In
Milwaukee Public Schools, Dec. No. 29482-B (WERC, 5/99), near the conclusion of a
contentious first day of what would have been a multiple day hearing, the pro
se complainant
was unhappy with one of the examiner's rulings and left the hearing before it had concluded
for the day. The examiner granted the respondent's motion to dismiss on the basis that the
complainant indicated his unwillingness to further prosecute his case. In reversing the
examiner's decision, the Commission found that the factual premise for granting the motion
was incorrect - i.e., that nothing in the record indicated that complainant would not be
pursuing his case further. The Commission further stated that, "even if the Complainant had
indicated that he would not be attending additional days of hearing, dismissal of the
complaint would not have been appropriate." Id. at 12.

In this case, Schulte indicated before leaving the hearing that although she was not
going to participate in the hearing, she intended to continue arguing her case. Such a
statement indicates that she did not intend to abandon the prosecution of her complaint by
leaving the hearing, only that she had decided not to prosecute her complaint by presenting
or rebutting evidence at the hearing stage of the proceedings. Accordingly, the Examiner
finds that Schulte has not failed to prosecute her complaint and denies the motion to dismiss
the complaint on that basis.

Although the Examiner concludes that granting a motion to dismiss is not
appropriate
in these circumstances, there are other consequences of Schulte's decision to leave the
hearing. Consistent with the Commission's view in Milwaukee Public Schools,
supra,
once a complainant has made clear their intention not to participate further in the hearing
process, the Complainant will be deemed to have waived certain rights pursuant to ERC
18.08(3)(b)(7), which provides:

(b) Effect of failure to appear. Unless good
cause is shown, any party failing to
appear and participate after due notice waives the rights listed in par. a, except
the right to submit closing arguments in writing within a time period after the
hearing specified for that purpose by the commission or examiner, and shall not
later introduce any evidence. The commission or examiner may rely on the
record as made at the hearing.

In this case, Schulte was warned by the Examiner that the hearing would take
place
regardless of her decision to leave. She was also made aware of the consequences of
leaving,
namely that she would forfeit her ability to present evidence, cross-examine witnesses, rebut
evidence, and make objections. In its brief, WEAC

Page 5

Dec. No. 32785-D

argues that none of the reasons Schulte provided for leaving the hearing constitute good
cause. Essentially, Schulte's reasons for leaving were related to the nature of the hearing
process. While it is understandable that a pro se complainant would have
apprehension
regarding the adversarial nature of the hearing, it does not follow that a complainant can
unilaterally decide not to participate in a hearing with no consequences. In this case, the
consequences are that Schulte has waived her right to present evidence, cross-examine
witnesses, and rebut the evidence presented. She is now limited to arguing the merits of her
case based on the evidentiary record that was created at the hearing in her absence.

ORDER

The motion to dismiss for lack of prosecution is hereby denied. Schulte has
until July
26, 2010 to file written arguments on the issue presented at the hearing, i.e., whether the
evidence produced at the hearing establishes her right to proceed to arbitration with the
College absent union participation or acquiescence. The College and WEAC will then have
until August 25, 2010 to file a response. Schulte will then have until September 7, 2010 to
file a reply.

Dated at Madison, Wisconsin, this 24th day of June, 2010.

WISCONSIN EMPLOYMENT RELATIONS COMMISSION

Matthew Greer, Examiner

EMG/dg

32785-D No. 32785-D

1 The Wisconsin Education Association
Council's (WEAC) motion to intervene was granted at the hearing and
has been treated as a party for the purposes of briefing this motion.

2 A more thorough rendering of the
background of this case can be found in Examiner Nielsen's decision and
the Commission's order on review of examiner's decision. Dec. No. 32785-A (Nielsen,
9/09) and Dec. No.
32785-B (WERC, 12/09).

3 Schulte's representative did not file an
appearance and was not identified on the record. He has not taken
any other action on Schulte's behalf related to this case. For the purpose of this decision,
Schulte has been
treated as a pro se party.

4 Schulte expressed these reasons orally
in conversations prior to the hearing and in a letter from Schulte to the
Examiner dated April 30, 2010. The Examiner summarized the oral conversations with
Schulte on the record
at the hearing following her departure.

5 The Examiner offered Schulte's
representative a copy of the decision, but was informed that he had a copy
of it and that the substance of the decision did not affect Schulte's decision not to participate
in the hearing.

6 Schulte claims that she did not receive
the communication from the Examiner setting the briefing schedule
on the motion and requested an extension of time in which to file arguments. The Examiner
concluded that
the briefing schedule was properly served on Schulte and denied her request for an extension.
However,
relevant arguments made in two letters submitted by Schulte on April 30, 2010 and May 24,
2010 were
considered in deciding this motion.

7 ERC 18.08(3)(b) is made applicable
to this proceeding pursuant to ERC 12.05.